The unanimous decisions come nine months after oral arguments were heard by a five-judge panel. While a Crown appeal to the Supreme Court of Canada is likely, the decisions provide some guidance for the trial courts in the interim. The Constitutionality of mandatory minimum sentences was previously discussed for other provisions at the Ontario Court of Justice level, here.

The panel held that both of the mandatory minimums under s. 95 are unconstitutional, violating s. 12 of the Charter, which protects against cruel and unusual punishment. The six cases turn on different facts, and as such the analysis was subtly different in each. Because s. 95 is a hybrid offence, which means that the Crown may elect by summary conviction or indictment, the jeopardy of the accused must be considered based on the respective facts. If the Crown elects by summary conviction, there is no mandatory minimum and a maximum penalty of one year. However, if the Crown elects by indictment, the mandatory minimum is three years for a first offence (s. 95(2)(a)(i)) and five years for a subsequent offence (s. 95(2)(a)(ii)). It is the 2-4 year gap between the summary maximum penalty and the indictable minimum penalty on which the analysis turned.

After deeming the three-year mandatory minimum sentence unconstitutional in Nur, Justice Doherty held that the s. 12 Charter breach could not be saved by s. 1, as:

“No system of criminal justice that would resort to punishments that ‘outrage standards of decency’ in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system” (para 80).

The striking down of the three-year mandatory minimum (a mandatory minimum of one-year for the indictable charge was upheld) was based primarily on the “cavernous” disconnect between the potential severity of the offence and a three-year penitentiary sentence (Nur, para 176).

The ONCA decisions in these cases confirm that Parliament overplayed its tough-on-crime agenda with Bill C-10, the Safe Streets and Communities Act, as was speculated at the time of its enforcement. For the time being, judicial and Crown discretion reign supreme, and deterrence and denunciation will have to be applied in other ways.